State v. Kelly

2024 Ohio 985

Opinion

[Cite as State v. Kelly, 2024-Ohio-985.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2023 AP 10 0051 CEDRICK KELLY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the New Philadelphia Municipal Court, Case CRB-1100224 (A)-(C)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 15, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MADISON MCWILLIAMS CEDRICK KELLY PRO SE Assistant Prosecutor 1440 3rd St. S.E. 150 East High Aavenue New Philadelphia, OH 44663 New Philadelphia, OH 44663 [Cite as State v. Kelly, 2024-Ohio-985.]

Gwin, P.J.

{¶1} Defendant-Appellant Cedrick Kelly [“Kelly”], pro se, appeals the October 5,

2023 decision of the New Philadelphia Municipal Court, Tuscarawas County, Ohio

denying his motion to seal records. Appellee, the State of Ohio did not file a brief.

Facts and Procedural History

{¶2} On or about February 16, 2011, in New Philadelphia Municipal Court Case

No. CRB-1100224(A), (B), and (C), Kelly was charge with two counts of Assault,

misdemeanors of the first degree in violation of R.C. 2903.13 and one count of

Aggravated Menacing, a misdemeanor of the first degree, in violation of R.C. 2903.21.

{¶3} By Judgment Entry filed April 26, 2012, the state dismissed the count of

aggravated menacing and reduced the two counts of assault, to two counts of disorderly

conduct with persistence, in violation of R.C. 2917.11(A)(1)/(E)(3), misdemeanors of the

fourth degree.

{¶4} On June 26, 2023, Kelly filed a motion to seal the records in the above-

captioned case. A hearing on Kelly’s motion was held before a magistrate on September

22, 20231. The magistrate noted that Kelly appeared pro se and an assistant prosecutor

appeared on behalf of the state and orally objected at the hearing to the sealing of the

records due to outstanding fines and court costs still owed by Kelly.

{¶5} After hearing, the magistrate found that one year had not passed since

Kelly’s discharge in this case because he still has outstanding fines and court costs due

in this case. Magistrate’s Decision and Judgment Entry Denying Defendant’s Motion to

Seal, filed Oct. 5, 2023. [Docket Entry No. 82]. The trial judge after an independent review

1 A transcript of the hearing was not filed with the record in this case. Tuscarawas County, Case No. 2023 AP 10 0051 3

of the record, approved and adopted the magistrate’s decision in full. Judgment Entry

Adopting Decision of the Magistrate, filed October 5, 2023.

Assignment of Error

{¶6} Kelly raises one Assignment of Error,

{¶7} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING APPELLANT'S APPLICATION FOR EXPUNGEMENT AS ITS FINDING THAT

THE APPELLANT HAS NOT PASSED FINAL DISCHARGE IN THE INSTANT MATTER.”

[sic.]

Law and Analysis

{¶8} Kelly contends that the trial court erred because he completed the sentence

imposed by the trial court and “sent the costs to the Attorney General for collections,

which illustrates the costs involved were civil and thus were not part of the criminal

sanctions.” Appellant’s brief at 3.

Pro se Appellant

{¶9} We understand that Kelly has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP–116, 2006–Ohio–

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007–T–0022, 2008–Ohio–2128, ¶ 11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154, 2005–Ohio–6494, ¶ 4 (internal quotation omitted). Although in a pro se

action the court allows latitude to the unrepresented defendant in the presentation of his

case, the court is not required to totally throw the Rules out the window. See, Wellington Tuscarawas County, Case No. 2023 AP 10 0051 4

v. Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d 554,

¶18. (A substantial disregard for the rules cannot be tolerated).

{¶10} A transcript of the hearing held before the magistrate was not filed with the

record in this case. Pursuant to App.R. 9(B), it is the appellant’s duty to file the transcript

or any parts of the transcript that are necessary for evaluating the trial court’s decision.

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). “This is

necessarily so because an appellant bears the burden of showing error by reference to

matters in the record.” Id. at 199, citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d

1355 (1978). Without the filing of a transcript (or a statement of the evidence or

proceedings under App.R. 9(C) or an agreed statement under App.R. 9(D)), this court

has nothing to pass upon and must presume the validity of the trial court’s proceedings

and affirm. Id. This means that “we must presume that the trial court acted with regularity

and did not abuse its discretion.” Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21,

520 N.E.2d 564 (1988).

Failure to file objections and transcript with the trial court

{¶11} Two procedural issues impede our consideration of Kelly’s appeal. First,

Kelly failed to file written objections to the magistrate’s decision. If there are no timely

objections filed, “the court may adopt a magistrate’s decision, unless it determines that

there is an error of law or other defect evident on the face of the magistrate’s decision.”

Civ.R. 53(D)(4)(c). Except for a claim of plain error, a party may not appeal a trial court’s

adoption of a magistrate’s factual finding or legal conclusion unless the party has first

objected to that finding or conclusion in the trial court. State ex rel. Pallone v. Ohio Court

of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.3d 1220, ¶11; See, also, State Tuscarawas County, Case No. 2023 AP 10 0051 5

ex rel. Neguse v. McIntosh, 161 Ohio St.3d 125, 2020-Ohio-3533, 161 N.E.3d 571, ¶9;

Lamp v. Lamp, 5th Dist. Muskingum No. CT2003-0054, 2004-Ohio-6262, 2004 WL

2674563; In re Lemon, 5th Dist. Stark No. 2002 CA 00098, 2002-Ohio-6263, 2002 WL

31546216. The doctrine of plain error is limited to exceptionally rare cases in which the

error, left unobjected to at the trial court, “rises to the level of challenging the legitimacy

of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679

N.E.2d 1099 (1997).

{¶12} Second, Kelly failed to file a transcript of the proceedings with the trial judge.

“[B]y failing to provide a transcript to the trial court when filing objections, that party waives

any appeal as to those findings other than claims of plain error. Civ.R. 53(D)(3)(b)(iv).”

State ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39

N.E.3d 1220, ¶11. When a party objecting to a magistrate’s decision has failed to provide

the trial court with the evidence and documents by which the trial court could make a

finding independent of the report, the appellate court is precluded from considering the

transcript of the hearing submitted with the appellate record. State ex rel. Duncan v.

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 1995–Ohio–272; Oyler v. Oyler, 5th Dist.

Stark No. 2014CA00015, 2014-Ohio-3468, ¶27.

{¶13} In the case at bar, Kelly did not file objections to the magistrate’s decision

and did not file a transcript of the hearing before the magistrate in the trial court. Because

the trial judge did not consider the transcript of the hearing before the magistrate, we

would not be able to consider the transcript of the hearing before the magistrate even if

Kelly had insured it was filed with the record on appeal. Id. Tuscarawas County, Case No. 2023 AP 10 0051 6

Issue for Appellate Review: Whether the trial judge’s decision to adopt the

magistrate’s recommendation was plain error.

{¶14} “[T]he final discharge required by R.C. 2953.32(A)(1) does not occur until

an offender satisfies all sentencing requirements.” State v. Aquirre, 144 Ohio St.3d 179,

2014–Ohio–4603, 41 N.E.2d 1178 ¶ 28. Because expungement is a privilege and not a

right, a trial court shall only grant expungement to an applicant who meets all the

requirements presented in R.C. 2953.32. State v. Morris, 5th Dist. Licking No. 09–CA–

128, 2010–Ohio–2403, ¶ 8, citing State v. Simon, 87 Ohio St.3d 531, 533, 2000–Ohio–

474, 721 N.E.2d 1041. An appellate court reviews a trial court’s decision to grant or deny

a motion to seal records pursuant to R.C. 2953.52 for an abuse of discretion. State v.

Poole, 5th Dist. Perry No. 10–CA–21, 2011–Ohio–2956, ¶ 11, citing State v. Widder, 146

Ohio App.3d 445, 766 N.E.2d 1018, 2001–Ohio–1521, ¶ 6 (9th Dist.)

{¶15} The Supreme Court has determined that “the final discharge required by

R.C. 2953.32(A)(1) does not occur until an offender satisfies all sentencing requirements.”

State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, ¶ 28. “‘Final discharge’ has not

been achieved until an individual has served all criminal portions of the punishment

imposed by the court.” State v. T.M., 8th Dist. No. 101194, 2014-Ohio-5688, ¶ 15. “This

includes any period of prison or jail, any period of postrelease control or community

control, and the payment of restitution and any fine imposed.” Id., citing Aguirre at ¶ 12-

19 (Emphasis added). Accord, In re A.R.M., 10th Dist. Franklin No. 18AP-554, 2019-Ohio-

1325, ¶13; State v. Paige, 10th Dist. Franklin No. 15AP-510, 2015-Ohio-4876, ¶11; State

v. T.M., 8th Dist. Cuyahoga No. 101194, 2014-Ohio-5688, ¶7; State v. S.D., 2nd Dist.

Montgomery No. 28615, 2020-Ohio-4597, ¶8, n.3. Tuscarawas County, Case No. 2023 AP 10 0051 7

{¶16} Pursuant to Civ.R. 53(D)(3)(b)(iv), Kelly’s failure to object to the magistrate’s

decision bars him from “assign[ing] as error on appeal the court’s adoption of any factual

finding or legal conclusion” of the magistrate. Accordingly, we limit our review to plain

error.” State ex rel. Hunley v. Dept. of Rehab. & Corr., 156 Ohio St.3d 354, 2019-Ohio-

933, 126 N.E.3d 1122, ¶ 5.

{¶17} In addition, we cannot consider the transcript from the hearing before the

magistrate because Kelly did not file it in the trial court to be consider when the trial court

reviewed the magistrate’s decision. “The lack of a transcript * * * precludes an assessment

of whether the evidence supports the trial court’s conclusions or if the judgment is against

the manifest weight of the evidence.” Reproductive Gynecology, Inc. v. Wu, 10th Dist. No.

22AP-141, 2023-Ohio-2557, ¶ 37.

{¶18} Therefore, to the extent that Kelly relies on evidence from the hearing

transcript which was not before the trial judge his argument must fail. State v. Ishmail, 54

Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500(1978), paragraph one of the syllabus (“A

reviewing court cannot add matter to the record before it, which was not a part of the trial

court’s proceedings, and then decide the appeal on the basis of the new matter.”); State

ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St.3d 493, 2015-Ohio-2003, 39 N.E.3d

1220, ¶11 (“The fact that the party later supplies a statement under App.R. 9(C) is of no

consequence; the appellate court is still precluded from reviewing the factual findings...

In plain terms, the court of appeals cannot consider evidence that the trial court did not

have when it made its decision.”) (citations omitted.) Tuscarawas County, Case No. 2023 AP 10 0051 8

{¶19} Kelly makes no argument in his brief concerning outstanding fines in the

case. At the time the trial judge adopted the magistrate’s decision, she found fines were

still owing. If the fines have been paid, Kelly can file the motion anew in the trial court.

{¶20} We find no abuse of discretion or plain error regarding the trial judge’s

adoption of the magistrate’s decision under the facts of this case.

{¶21} Kelly’s sole Assignment of Error is overruled.

{¶22} The judgment of the New Philadelphia Municipal Court, Tuscarawas

County, Ohio is affirmed.

By Gwin, P.J,

Hoffman, J., and

Wise, J., concur